June 22, 2018
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Clean Election Loophole

A lawsuit challenging the Maine Clean Election Act’s matching funds provision will bring a lot of attention to the voter-approved funding system. What it won’t do is lead to the changes that are needed to make the law work as intended.

Last week, the Maine Heritage Policy Center, a conservative think tank, and the James Madison Center for Free Speech in Indiana filed a lawsuit in federal court challenging the constitutionality of a portion of Maine’s Clean Election law. They are seeking to suspend the part of Maine’s law that allows publicly financed candidates to receive additional taxpayer money when they are outspent by their opponents, saying it is an infringement on free speech.

Democrat Libby Mitchell, the only candidate for governor who is using the public financing system, received an initial payment of $600,000 in the general election campaign. She is eligible for another $600,000 in matching funds, which are triggered when a privately financed opponent or group spends money to advocate for the election of that candidate.

The timing of the lawsuit — three months before the Nov. 2 election — is suspect. But, claims that an injunction or adverse ruling would be devastating to Ms. Mitchell, who is the president of the Maine Senate, are hyperbolic.

That’s because matching funds aren’t the biggest problem with the Clean Election Act. Rather, the biggest loophole is that outside groups and political action committees, often run by candidates who are running “clean,” can raise and spend large amounts of money to influence elections.

Earlier this year, the League of Women Voters of Maine released a report that highlighted the problem.

In the 2006 general election, more than $4.5 million was given to individual candidate PACs in Maine. Nearly half the money came from businesses and corporations. Forty-three percent of the money raised by caucus PACs in 2006 went to other party PACs, showing the easy flow of money despite Maine’s clean election laws.

Libby Mitchell, for example, is listed as a primary fundraiser and decision maker for the Senate Democratic Campaign Committee, a PAC that listed more than $106,000 in cash contributions on its latest filing with the Maine Commission on Governmental Ethics and Election Practices. Large donors included major corporations — in and out of Maine — and other PACs, according to the July filing. It then gave $60,000 to the Victory 2010 PAC, a major Democratic committee.

“Some believe that if a Clean Elections candidate accepts public money for his or her own campaign in the interest of remaining free from obligation to special interests, that public money is wasted if he or she incurs obligations to special interests through fundraising for his or her leadership PAC,” the League of Women voters said in its January report. “The same concern might be raised for legislators who raise money for their caucus PAC or their party committee.”

Under the current system, “the true spirit and intent of public financing in Maine may be compromised,” the league wrote.

That is an understatement. Fixing this major loophole would be more helpful than challenging the validity of matching funds.

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